October 18, 2016

To date, climate adaptation and resilience planning efforts on the local, state, and federal levels have largely focused on protecting residential, commercial, and municipal infrastructure from sea level rise and deadly storm surge through such structural practices as shoreline armoring. However, a growing number of advocates are raising concerns about the threat that extreme weather poses to the low-income communities and communities of color that are disproportionately situated near industrial facilities vulnerable to flooding.

Industrial facilities – oil and gas, manufacturing, chemical, and agricultural – are often sited within floodplains to permit access to water for transport and industrial process and are ill-equipped to prevent hazardous material spills and leaks caused by extreme precipitation, flooding, and storm surge. As a result, neighboring communities are at particular risk of exposure to these dangerous substances during and following extreme weather events. Community members and first responders face not only the immediate risk of contact but also chronic exposure once contaminated floodwaters recede and leave an invisible toxic residue in homes, water systems, schools, open spaces, and wherever floodwaters invaded.

Last month, the Conservation Law Foundation (CLF) filed a first-of-its-kind federal lawsuit against ExxonMobil that seeks to prevent future uncontrolled discharges caused by climate change impacts at an industrial facility on Massachusetts' Mystic River. ExxonMobil's Everett Terminal, located near residential communities in Chelsea, is an oil and gas storage and distribution facility that generates large quantities of hazardous waste subject to oversight by the federal Resource Conservation and Recovery Act (RCRA). The CLF complaint alleges that the facility is "vulnerable to sea level rise, increased precipitation, increased magnitude and frequency of storm events, and increased magnitude and frequency of storm surges due to its location, elevation, and lack of preventative infrastructure" and that ExxonMobil has not "taken climate change impacts into account in its stormwater pollution prevention plan ('SWPPP'), spill prevention, control and countermeasures plan ('SPCC') and facility response plan ('FRP')."

The lawsuit alleges in some detail that ExxonMobil has been acutely aware of global climate change and the "imminence of rising temperatures and rising sea level" since at least the late 1970s but has failed to act to fortify the Everett Terminal or "share its findings to notify the public of related risks." By comparison, CLF notes in its complaint, local government has already adopted adaptation measures by engineering a sewage treatment plant in Boston that will accommodate decades of projected sea level rise.

CLF significantly relies on Massachusetts' own climate modeling and adaptation planning in presenting evidence of sea level rise and storm surge and to substantiate risk of inundation and spills at the terminal from storms as small as a Category 1 hurricane. But a wealth of other climate and adaptation evidence about prospective risk is available to coastal communities seeking to address unfortified industrial facilities.

For example, in 2013, EPA reported that there were well over 25,000 hazardous waste generating facilities nationwide that are governed by RCRA, a figure that excludes the tens of thousands of facilities and operators also permitted to transport and receive hazardous waste. While not all of these facilities are located in floodplains, storm surge zones, and exposed to rising sea levels, many are located in close proximity to waterways for transport and industrial process purposes.

Unfortunately, government statistics provide an imperfect picture of the threat that climate-induced hazards pose to industrial facilities. However, we need only examine recent events to see how the catastrophic impact of climate change can wreak havoc on such facilities.

Days after Hurricane Matthew tore up the southeastern seaboard, the floodwaters continued to rise in eastern North Carolina, to devastating effect. While the persistent and even worsening flooding prolongs the immediacy of search and rescue operations, a second story of a threat to both short- and long-term public health is emerging in the state.

The Waterkeeper Alliance and local river advocates have documented inundation of coal ash and industrial swine wasteholding ponds. The advocates have raised concerns about potential water quality impacts from leaks and the threat to residents and others who come in contact with the fouled water following the storm. Moreover, contaminated floodwaters in rivers and streams are likely to commingle with flooding in residential areas, which include communities that are already disproportionately impacted by coal ash and industrial swine operations.

Last month, the bipartisan U.S. Commission on Civil Rights released a report that faulted the U.S. Environmental Protection Agency (EPA) for disproportionate siting and inadequate regulation of coal ash holding ponds in communities of color, such as the ponds in North Carolina that have been breached by Matthew's floodwaters. While the report recommends that the agency identify and address coal ash ponds at highest risk of failure, the flooding in the Southeast vividly illustrates how the open-air storage of hazardous waste in major floodplains poses a clear and unnecessary danger of contamination to adjacent communities.

The commission's report also faults the EPA's systemic failure to investigate and respond to environmental injustice complaints under Title VI of the Civil Rights Act. North Carolina advocates filed a still-unanswered Title VI complaint with EPA in 2014 that shows disproportionate impact upon African Americans, Latinos, and Native Americans by the state's permitting of thousands of industrial swine facilities within their communities. The complaint also alleges inadequate permit requirements to prevent uncontrolled discharges from manure "lagoons" (huge, industrial-size pools of manure), including lack of requirements for public notifications of spills and measures to prevent discharges from flooding caused by hurricanes.

A June study by the Environmental Working Group and Waterkeeper Alliance found that 170 animal waste lagoons are located within North Carolina's 100-year floodplain. By comparison, Hurricane Matthew is likely the second storm in 20 years to cause flooding that exceeds the state's 500-year flood mark. The data maps included in the Exposing Fields of Filth study illustrate that some of the highest concentrations of industrial swine facilities are located within the same watersheds and communities of color or low-income communities inundated by Matthew's persistent floodwaters.

The EPA and North Carolina are not the only regulatory authorities failing to address the threat of climate change-induced spills at industrial facilities and the disproportionate impact on vulnerable communities or communities of color. As a recent op-ed in The New York Times illustrates, the oil and gas industry on the Texas Gulf coast is especially vulnerable to hurricanes, even when excluding storm intensification due to climate change. A catastrophe of epic proportions looms in the near future as a direct hit could cause flooding of millions of gallons of "jet fuel, liquid natural gas and sour crude into strip malls, parks, schools and offices" of some of Houston's most underserved communities.

And the growing frequency and intensity of hurricanes is not the only climate impact to be implicated in catastrophic flooding and industrial chemical spills. We've already seen that general intensification of rain and other precipitation events can cause widespread flooding. Record rainfall in August caused massive flooding in 20 Louisiana parishes, damaging more than 146,000 homes. In the aftermath of the rainfall, a Honeywell plant spilled an undisclosed quantity of sulfuric acid, and communities are worried about the likely but unknown risk of oil and gas residues left in homes after floodwaters receded. And as my colleague Evan Isaacson pointed out in August, the Chesapeake Bay region and efforts to restore the Bay are not immune from the threat of intensified precipitation, either.

These stories illustrate a pressing and widespread need for state and federal regulators to systematically identify climate vulnerabilities and require adaptation measures to prevent climate-induced industrial spills. The extreme weather impacts of climate change are already happening, and public officials should also take more immediate action to review and enhance reporting, public notification, and flood restoration requirements to ensure that the public is adequately informed and protected from toxic floodwaters. We cannot afford to bury our heads in the floodwaters any longer.

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Also from David Flores

David Flores, J.D., is a CPR Policy Analyst. He joined CPR in 2016 to work on climate adaptation policy and advocacy. Before joining CPR, Mr. Flores spent eight years working for watershed nonprofit Blue Water Baltimore, where he managed water quality monitoring research, legal and regulatory advocacy, and Clean Water Act compliance monitoring and enforcement programming.